Tucker, Barry John v Bentley, Donald Andrew
[1996] FCA 1141
•20 DECEMBER 1996
CATCHWORDS
COPYRIGHT - sketch for design of house allegedly prepared by applicant - whether respondent used sketch for basis of plans prepared by the respondent - whether applicant's alleged copyright in sketch was breached by respondents dealing with design - credit of applicant and respondent - whether implied terms are to be read into contract.
Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348
Led Builders Pty Ltd v Eagle Homes Pty Ltd (Davies J unreported: judgment delivered 29 July 1996)
Robert J Zupanovich Pty Ltd v B & N Beale Nominees Pty Ltd (1995) 138 ALR 107
Beck v Montana Constructions Pty Limited (1964-5) NSWR 229
NG v Clyde Securities Ltd (1976) 1 NSWLR 443
Matefly Perl Nagy Pty Ltd v Devefi Pty Ltd (1991-1992) 23 1 PR 505
No NG 798 of 1994
BARRY JOHN TUCKER Applicant
- and -
DONALD ANDREW BENTLEY First Respondent
- and -
HAYCOLL PTY LIMITED Second Respondent
- and -
CLINTON MACKENZIE WILLIAMS Third Respondent
O'Loughlin J
Adelaide (heard in Sydney)
20 December 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 798 of 1994
)
GENERAL DIVISION )
B E T W E E N:
BARRY JOHN TUCKER
Applicant
- and -
DONALD ANDREW BENTLEY
First Respondent
- and -
HAYCOLL PTY LIMITED
Second Respondent
- and -
CLINTON MACKENZIE WILLIAMS
Third Respondent
Coram: O'Loughlin J
Place: Adelaide (heard in Sydney)
Date: 20 December 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The matter be adjourned sine die with liberty to any party to relist the matter on seven days notice.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No NG 798 of 1994
)
GENERAL DIVISION )
B E T W E E N:
BARRY JOHN TUCKER
Applicant
- and -
DONALD ANDREW BENTLEY
First Respondent
- and -
HAYCOLL PTY LIMITED
Second Respondent
- and -
CLINTON MACKENZIE WILLIAMS
Third Respondent
Coram: O'Loughlin J
Place: Adelaide (heard in Sydney)
Date: 20 December 1996
REASONS FOR JUDGMENT
Background
This is an action arising out of an alleged breach of copyright which is said by the applicant, Barry John Tucker, to subsist in a sketch ("the sketch") for the design of a house. The house in question was constructed by Mr Tucker on Lot 37 Hallam Street, Norris Park, Albury in 1993. I will refer to that piece of land as "Lot 37 Hallam Street". A photocopy of the sketch, which is the subject of this dispute,
was received into evidence as annexure "L" to the affidavit of Mr Tucker sworn on 21 December 1994.
Mr Tucker, a builder, has claimed that the first respondent, Donald Andrew Bentley, (known as Andrew Bentley) prepared plans for him based on that sketch and that Mr Bentley thereafter made those plans available to the second and third respondents (also builders) who used them in the construction of another house. Mr Bentley agreed that he prepared the plans, but he claimed that they were his original work. He denied that Mr Tucker gave him any sketch. I will refer to the plans that were prepared by Mr Bentley as the "Hallam Street Plans" to distinguish them from the "sketch".
The house built by the second and third respondents was referred to in evidence as the "Chesterfield" and, for convenience I will also use that term. Advertisements for the sale of the "Chesterfield" appeared in the "Border Mail", a newspaper circulating in the Albury - Wodonga area, in September 1994. Mr Tucker alleged that it could be inferred from the advertisements that the "Chesterfield" had been built by the second respondent Haycoll Pty Ltd. The third respondent, Clinton Mackenzie Williams, was the principal shareholder and a director of the second respondent. It was the case for the applicant that the advertisements for the "Chesterfield" contained a floor-plan that constituted an infringement of Mr Tucker's copyright in his sketch for Lot 37 Hallam Street.
Mr Tucker has sought a declaration that he is the owner of the copyright subsisting in the sketch. He has also made an additional claim that he is entitled to a declaration that he has an exclusive right and licence to use the Hallam Street Plans. In addition to his claim for copyright, Mr Tucker sought consequential relief, including injunctive orders, against all three respondents. Although the applicant's primary claim for relief was based upon the issue of copyright, he initially sought damages for an alleged breach of contract and damages under the Trade Practices Act 1974 (Cth) ("the TPA") and the Fair Trading Act 1987 (NSW) ("the FTA"), for misleading or deceptive conduct. The claims for relief under the TPA and the FTA were not, however, pursued, nor was the allegation that the "Chesterfield" had been built by the second and third respondents in the knowledge that they were in breach of an exclusive licence that had been granted to the applicant.
The circumstances surrounding the construction of the "Chesterfield" were dealt with superficially in evidence. Mr Bentley acknowledged that he prepared the plans for it, but claimed that he did so in the belief that he was the owner of the copyright in the Hallam Street Plans and that he was, therefore, entitled to deal with them in such manner as he saw fit.
Mr Tucker gave evidence that when he saw the advertisement in the "Border Mail" for the "Chesterfield" he rang Mr Bentley. According to Mr Tucker, Mr Bentley said that he knew of the advertisement, adding that he had drawn the plans for the "Chesterfield" as "it's my design and I can do with it what I like". Mr Tucker claimed that he said to Mr Bentley:-
"You have copied my plan, and I am not happy with you using my plan for another builder."
The substance of this evidence was not contested by Mr Bentley.
Although the second and third respondents filed an appearance and defence, they did not appear when the matter was called on for hearing. The applicant did not withdraw his claims so far as they related to those respondents, but he led little direct evidence against them. For practical purposes, the proceedings resolved into a "one on one" dispute between Mr Tucker and Mr Bentley. Each labelled the other a liar; each maintained that he was the originator, that is, the party who is entitled to be recognised as the creator of the original design for the house that was built on Lot 37 Hallam Street. Each accused the other of fraudulently preparing sketches of the house that was built on Lot 37 in order to bolster his case.
Mr Tucker, has for a period in excess of 25 years, carried on business as a builder in the Albury-Wodonga area. During the period that is relevant to these proceedings, his business, to a substantial degree, has involved the building of homes on allotments of land that have been purchased, either in his name or in the name of B.J. and S.F. Tucker Homes Pty Ltd ("Tucker Homes"). That company is the trustee of a family trust called the "BJ Tucker Family Trust".
Mr Tucker gave evidence that it was part of his practise to design - or, at least, to involve himself deeply in the design of - the houses that he built. He said that from about 1976 until 1993 he had been in the habit of using the drafting and design services of Mr Delarue of Phillip Delarue & Associates to assist him in the preparation of plans, including presentation plans, and working drawings for houses that he proposed to build. In his affidavit of 27 October 1994, (which was the first of four affidavits filed by Mr Tucker in these proceedings) Mr Tucker defined a "presentation plan" as "a scale plan of a house which usually discloses the front elevation and the floor plan with measurements of the various rooms". He further deposed that it was his business practice to distribute presentation plans among real estate agents and to use them generally for promotional purposes.
From about 1985, when he was then aged twenty six, Mr Bentley, was employed by Mr Delarue as a draftsman and building designer. In that capacity, Mr Bentley had come to know Mr Tucker as a client of his employer. Mr Bentley also, from time to time, was involved in the supply of professional services to Mr Tucker. In December 1992, Mr Bentley left the employ of Mr Delarue and set up his own business as a draftsman and registered building designer. He has since carried on that business in the Albury-Wodonga area under the name of "Andrew Bentley Designs". Mr Bentley circularised clients and potential clients in early 1993 advising that he had commenced business on his own account. Mr Tucker received such a circular dated 5 February 1993 and in about February or March 1993, he moved his business from Mr Delarue to Mr Bentley. That business included the instructions for the preparation of plans relating to the construction of a four-bedroom house on Lot 37 Hallam Street. Save for the critical issue concerning the identity of the creator of the design for the house at Lot 37, the remaining evidence so far summarised was not disputed and I make findings accordingly.
Claim - Mr Tucker
Although the facts of this case were complex, the core issue can be simply stated. It is to this effect: Mr Tucker has claimed that he prepared a sketch of the house that he wanted to build on Lot 37 Hallam Street, that he gave a photocopy of his sketch to Mr Delarue with instructions to prepare all appropriate plans, that Mr Delarue, through ill-health was not able to finish the job and so Mr Tucker switched over to Mr Bentley and asked him to prepare the plans. For this purpose, Mr Tucker, so he claimed, gave his original copy of the sketch to Mr Bentley. Mr Tucker further claimed that he has not seen his original sketch since he gave it to Mr Bentley but that he retrieved the photocopy from the deceased estate of Mr Delarue. It is his case that the retrieved photocopy is Annexure "L". Mr Bentley has answered that claim by asserting that no such sketch was given to him by Mr Tucker and that it was he - not Mr Tucker - who created the original design for the house.
Mr Bentley's circular of February 1993 to potential clients explained the nature of the services that he was able to offer and his method of charging and concluded with the advice that "... all consultations are treated as confidential".
It would seem that the applicant might have intended to use the circular of 5 February 1993 as a base for a claim of breach of confidentiality. For example, there is a plea in par 3(E)(vii) of the Statement of Claim that the sketch was provided by Mr Tucker to Mr Bentley "upon the undertaking or representation made by (Mr Bentley) on or about 5 February 1993 to the effect that all consultations between them would be treated as, and would remain confidential". Similar allegations also appear in pars 3(D)(i) and 6(A). However, no express claim of breach of confidentiality was made in the Statement of Claim and it seems that it would have been difficult for Mr Tucker to assert such a claim. In the first place, he published the plans for Lot 37 Hallam Street when he lodged them with the Albury City Council for approval; and, secondly, he published them in part in the press by including the floor plan in a series of advertisements for the sale of the house that he built on Lot 37. Therefore, I reject any suggestion that there is a cause of action available to Mr Tucker for breach of confidence.
Mr Delarue died in September 1994, about the time of the occurrence of the events that gave rise to this litigation, but many of his plans and office records were received into evidence. During the course of his cross-examination, Mr Tucker was shown some documents. He was asked to explain how they came into his possession. His answer, which was given without objection, was as follows:-
"Yes, prior to Phillip Delarue passing away, Phillip Delarue came to me on site the Monday before - you know, before this court, before Delarue committed suicide - and on the Monday before he committed suicide, Phillip Delarue came to me on site and brought with him an envelope because he knew these proceedings were under way and in that envelope he gave me material which he said would help and be interested - I would be interested in for my case and that was amongst the documents that Phillip gave me.
And so he said to you, here are documents that will help or be of interest to you for your case?...Gave me the whole envelope and said, there's material in this envelope - I didn't open it at the time - gave me the envelope and said, there's material in this envelope which will help you with your case."(pp61-62)
In addition to the documents that Mr Phillip Delarue gave him, Mr Tucker also explained that the deceased's father, Mr Doug Delarue, later gave Mr Tucker the opportunity to go through his son's papers. By this means Mr Tucker also obtained additional material relating to some of his earlier building projects. It was Mr Tucker's evidence that there were, among the papers that he obtained from Mr Doug Delarue, some
envelopes in which he found his "initial instructions, my sketches ... " (p65).
Curiously, it was not suggested that Annexure "L", the centre of this litigation, was in the envelope that the deceased gave to Mr Tucker. That was obtained, apparently, when Mr Tucker was afforded the opportunity to examine the deceased's papers. If, as was apparent from what Mr Tucker had said, Mr Phillip Delarue was intent on helping Mr Tucker in his dispute with Mr Bentley, one might have expected him to have recognised the importance of Annexure "L". However, that issue was not pursued during the course of the trial and I make no finding other than the finding that I accept Mr Tucker's evidence that he prepared a sketch of which Annexure "L" is a photocopy. I will discuss this finding and its limited significance later in my reasons.
Originally, Mr Tucker had claimed in his application that he was seeking a declaration that he had been, since May 1993, "the owner of the copyright subsisting in the plan for a brick veneer residence dated May 1993 numbered WD 154-93". (That number was incorrect; the correct number was 157-93-1 but nothing turned on that mistake). That plan was identified by him as being Annexure "F" to his affidavit of 27 October 1994. It was common ground that Annexure "F" was the plan that Mr Bentley had prepared for Mr Tucker; that is, Annexure "F" is part of the Hallam Street Plans. Mr Tucker described in his affidavit the circumstances leading up to him obtaining possession of these plans (ie Annexure "F") in this manner:-
"About one or two days later I received a phone call from the First Respondent and he told me that the presentation plan and working drawings were ready to be collected. I then went to his house and he handed to me the presentation plan which is numbered 157-93-1 a copy of which is annexed hereto and marked with the letter "F" and the working drawing."(p34)
Although no attempt was made to amend his pleadings or to alter the relief that he sought until closing submissions, the case for Mr Tucker had proceeded in a different manner. Instead of focusing on the ownership of copyright in the Hallam Street Plans, Mr Tucker's case was run upon the premise that he had copyright in his sketch and it was that copyright that had been infringed. Notwithstanding this material difference, it could not be said that the respondent was unaware of this change in direction. On the contrary, it is evident from the following questions in cross-examination about a sketch for another allotment, Lot 32 Hallam Street, that Mr Bentley knew the case that he had to meet:-
"Well, Mr Tucker, you knew in May 1995 that it was important for your case that you be the author of some kind of sketch behind these designs; that you had your hand on the paper? You knew that, did you not?...Yes, I knew that, yes.
And you knew that it was important that your evidence supported that proposition?...Yes.
You swore this paragraph in this form, I put it to you, because you wanted to ensure that the sketch referred to as being handed to Mr Bentley was a sketch that included some writing of yours?...Yes.
This was the most important matter in the preparation of this case, was it not?...Well, this was events leading up to, yes.
Yes, but it is your case, is it not, and you want to establish that you made a practice of doing this sketching yourself first?...That's correct."(p81)
Another example of the cross-examiners awareness appears at p97:-
"Yes, but Mr Tucker, the importance of this is that as doubtless you are well aware, it is essential for copyright purposes that the sketch be your sketch, not one done by Mr Delarue for you and you are focusing, as I said to you this morning, were you not, on which sketch you had done that you could put into evidence and say was the sketch from which a house design developed?"
Mr Tucker's rather long answer to this question was described by his counsel in final submissions as his client's "philosophy":-
"I did not understand the complete complications with copyright at that stage and I have never at any stage said that I was wholly and solely the author of any of those prior works. I worked in conjunction with Phillip Delarue to produce those works but I believe I instigated, as I have shown earlier and can show with other sketches, I've instigated and given instructions of what I believe will suit a site, I make a judgment on what I feel the market is calling for out there, I listen to people when they go through my display homes and their comments, I look at the plans that they pay attention to and then I try to present something to them in the marketplace which I feel will sell and that's solely and wholly my decision what I'm going to produce. I have never at any stage asked anyone to produce something without putting considerable amount of thought into it and doing sketches and so forth of the blocks or playing around with ideas that I've formed which I'll want to use as a basis to market a property, because the way I feel, the buck stops with me if I don't sell that property."(pp97-98)
With the co-operation of counsel for Mr Bentley, amendments to the pleadings were made at the end of the trial to accord with the case as presented during the trial. But I have recounted these sections of the evidence as they indicate how Mr Tucker changed his position from the time of his original instructions. His lack of certainty and his inconsistency did not assist him when the time came for me to assess the reliability of his evidence.
In its final form, Mr Tucker's application sought declarations that he is the owner of the copyright subsisting in the "Subject Plan" (that being the sketch of which Annexure "L" was a photocopy) and that he "had and continues to have the sole and exclusive right and licence to copy, use and reproduce in a material form and to publish the Subject Plan". He also sought declarations that the publication of the advertisement and plan for the "Chesterfield" and the construction of that house infringed his copyright. Finally he sought injunctive relief, accounts of profits or damages and costs against all respondents.
Cross-Claim - Mr Bentley
Mr Bentley has filed a Cross-Claim against Mr Tucker and Tucker Homes. In it he has alleged that he is and was, at all material times, the owner of copyright subsisting in the Hallam Street plans. Mr Bentley has claimed that either Mr Tucker or his company has reproduced the Hallam Street Plans without his permission in the construction of a display home at Lot 197 Harmer Street Albury and that, in so doing, either Mr Tucker or Tucker Homes infringed Mr Bentley's copyright. In his affidavit sworn 27 October 1994 Mr Tucker acknowledged in par 10 that he had "commenced to construct another display home using the subject plans at Lot 197 Harmer Street Albury". However, he claimed that in so acting, he was within his rights and was not answerable to Mr Bentley.
In his affidavit of 10 March 1995 (the only affidavit filed by him in these proceedings), Mr Bentley deposed to the business practices of Phillip Delarue & Associates during the period of his employment in that firm. He said that all working drawings had a "title block" at the bottom right hand side of a page. The information that was recorded in the title block included the author of the design, the date upon which the drawing was made and the name of the draftsperson. If the author of the design was unknown that particular section of the title block was left blank. Mr Bentley said that when he commenced business on his own account he continued to include a title block in the corresponding position on his working drawings and that the information that was contained in the title block was consistent with that which had been included in the working drawings prepared during his period of employment with Phillip Delarue & Associates.
Consistent with this evidence, a title block was inserted on the working drawings for Lot 37 Hallam Street, and Mr Bentley's initials "A.B." appear alongside the entry "design". Those drawings are Annexure "G" to Mr Tucker's affidavit of 27 October 1994; they, like Annexure "F", are part of the Hallam Street Plans. Mr Tucker said during the course of his cross-examination that he paid little or no attention to these entries because he had found, on occasions, that they were wrong. It was surprising that he would delay commenting on an issue of such importance until cross-examination. The last of his four affidavits was in answer to Mr Bentley's affidavit in which Mr Bentley had addressed this subject and stressed the fact that original design work had been performed either by Mr Delarue or by him. One would have expected Mr Tucker to challenge the statement in his answering affidavit.
Mr Bentley also deposed in the same affidavit that whilst employed with Phillip Delarue & Associates, it was often the practice to include in the bottom left hand corner of standard and larger sized drawings an endorsement in the following terms:-
"This drawing is the property of Phillip Delarue & Associates and shall not be copied or reproduced in whole or in part without written permission from Phillip Delarue & Associates."
Annexure "A" to Mr Bentley's affidavit was tendered as an example of a design that Mr Bentley drew whilst an employee of Phillip Delarue & Associates which included the above-mentioned endorsement. It was not suggested that Annexure "A" had any other connection with the applicant or the circumstances of this case. However, no such entry appeared on the Hallam Street Plans, notwithstanding that there would have been ample room to insert such an endorsement on two or three of those pages.
The existence of such an endorsement on other plans was not disputed by Mr Tucker. He had noted it and challenged Mr Delarue about it. In cross-examination he said:-
"I queried Phillip on this straight away and he said: "We put this there to protect the drawing but the drawings will always remain your property." That was very clear, I clearly remember that comment made."(p128)
I must say that I regard this as an unusual piece of evidence. The statement attributed to Mr Delarue is completely contradictory to the statement that appears in the plans. If Mr Delarue was truly acknowledging that the property in the drawing was in the client, it would have been a simple matter for the draftsperson to insert the client's name in the plan. I do not accept this piece of Mr Tucker's evidence.
Mr Tucker's Design Ability
In his affidavit of 27 October 1994 Mr Tucker explained that he had, at his home, drawing equipment, including a drawing board which he used for making sketches. That evidence went unchallenged. He explained his practise this way:-
"It is my practice which I have developed over the years to draw rough plans or sketches for houses which I intend to build. When I am satisfied with my design or plan I would then go to an architectural draftsman to redraw that design for a presentation plan to be distributed among real estate agents and to be used for promotional purposes."(p28)
He added that his reason for this practise was "to see on paper my ideas and concepts and to work on them until I am satisfied that they are feasible and to try to develop a style or design which I believe will be attractive for purchasers of new homes."
Mr Bentley claimed in his affidavit that there was only one occasion in his seven years of employment with Mr Delarue when Mr Tucker presented a sketch for his own design. That occasion was the presentation of a sketch for Mr Tucker's future home at Lot 5 Joyce Place Lavington. In an answering affidavit sworn on 4 May 1995, Mr Tucker denied this allegation, saying that on "many occasions" he had given Mr Delarue a "number of sketches and drawings for different types of buildings including sketches for renovations". He identified the sketches by reference to his discovered documents. Those documents (Ex R4) were put to him in turn in cross-examination. In the end, the situation can be summarised as follows:-
Doc No 196 referable to Lot 31 Hallam Street
This was not the sole work of Mr Tucker; it was the joint product of Mr Delarue and Mr Tucker. (p112)
Doc No 314 referable to a design for Lot 37 Hallam Street that was prepared some time prior to the sketch that is the subject of these proceedings
As with Doc No 196, this was the joint product of Mr Delarue and Mr Tucker. (p112)
Doc No 198 referable to a renovation of the house of Mr King
This was not a sketch for a proposed house on a vacant block of land; it was a renovation. Counsel for Mr Bentley acknowledged that Mr Tucker had prepared this sketch. (p112)
Doc No 93 referable to a bathroom for Mr Amalfi
This was also a renovation; Mr Tucker prepared the sketch. (p113-114)
Doc No 230 referable to an existing shop at Bonegilla
Mr Tucker prepared the sketch.
Doc No 176
The evidence with respect to the preparation of this sketch (p114-115) is difficult to follow. It would seem that it is a preliminary outline of part only of a house. Mr Tucker spoke of "a client who had a particular idea" and of him using "portions of plans" and cutting portions out. When it was put to him "Yes, but that has not been drawn by you?" he agreed but I think he was referring back to the "portions". I find that there was an amount of original work by Mr Tucker in this sketch, but it is not possible to identify it.
Doc No 162 referable to Lot 5 Joyce Place (Mr Tucker's home)
It was accepted that Mr Tucker had prepared this sketch.
As a result of this summary, it can be seen that based on the evidence adduced at trial, Mr Tucker only produced, as original sketches for houses that he proposed to build on vacant allotments of land, the one that related to his own home at Joyce Place, the one allegedly relating to Lot 37 Hallam Street - the sketch that is central to this litigation - and perhaps Document No 176. The evidence did not explain why no mention was made of Mr Tucker's work with respect to Lot 32 Hallam Street (see later references to Annexure "O" and Ex A3). One would have expected his sketch in respect of that allotment to have been in the same bracket of discovered documents.
Mr Tucker agreed in evidence that he had produced, in answer to a Notice to Produce, 34 floor plans for homes that he had built or proposed to build from 1 January 1993 to the date of trial (p121). Those floor plans were the work of a professional draftsperson and do not assist Mr Tucker's cause; where were his original sketches? They would have had the potential to refute the respondent's submission that Mr Tucker was not in the habit of preparing sketches for the houses that he proposed to build.
Mr Bentley's acknowledgment that Mr Tucker supplied a sketch of the proposed house at Lot 5 Joyce Place, Lavington established, at the least, that Mr Tucker had an ability to prepare such a sketch. This ability of Mr Tucker to address matters of building design was apparently accepted by Mr Bentley. For example, the following passage from cross-examination suggests that Mr Bentley's instructions to his counsel included some acknowledgment that Mr Tucker had expertise in that area:-
"You, I think it is correct to say, is it not, that you made changes yourself to building designs, not large changes but changes to detail, as things were being built?...Yes."(p58)
As it was Mr Tucker's practise to build homes for sale to the public, it is obvious that he would have had to apply his mind to how best to make his product saleable. Would it be a one storey house or two? Three bedrooms or four? Rectangular or L-shape. Separate or combined lounge-dining areas? These and other conceptual and design matters would have to be addressed by Mr Tucker as the prelude to an ultimate marketing exercise. It is, of course, possible that Mr Tucker, in instructing his draftsperson, could have addressed those matters orally, but the greater likelihood is that a person having Mr Tucker's abilities and equipment would have first prepared some sketches for himself so that he might have some visual idea of the end product before giving his instructions.
Mr Bentley's evidence relating to the circumstances of Mr Tucker's instructions to him to prepare a design for Lot 37 appears at p258. Mr Bentley said, and Mr Tucker denied, that Mr Tucker had telephoned him and asked for a meeting at Lot 37 Hallam Street. According to Mr Bentley, Mr Tucker there orally instructed him to prepare a design for a house. Apart from drawing a few lines to indicate a roof pitch, the limit of Mr Tucker's instructions was incorporated in the following passage:-
"And the only parameters you say you had in relation to that design from Mr Tucker so you say is: a 27 degree pitch for a room?...That is correct.
Four bedrooms?...Yes.
18 squares?...Yes.
Double garage door?...Yes, that's correct.
Colonial bars?...On the windows, that's correct.
It does not say - colonial bars is what is written down?...That's correct.
And tiles?...That's correct.
And you say an experienced builder just gives you those items and says to you, "Go away and design me a house"?...Yes, that happens, yes. That's correct.
And that happened with Mr Tucker?...Yes, that is correct.(p258)
In the collision between the two men on this particular subject, I accept Mr Bentley's evidence that there was a meeting between the two men on the site of Lot 37 Hallam Street. That is supported by Mr Bentley's job card for 28 April 1993. But I reject Mr Bentley's version of the remaining events. I find it too difficult to accept that an experienced builder would give such inadequate instructions. But the rejection of Mr Bentley does not mean an automatic acceptance of Mr Tucker's evidence on this or any subject.
In his affidavit, Mr Bentley went on to say, after he had claimed that Mr Tucker had only produced a sketch in respect of Lot 5 Joyce Place:-
"On other occasions Mr Tucker provided sketches which had been drawn by his clients or were my drawings modified according to his clients requirements
...
All design sketches prepared by (Phillip Delarue & Associates) for Mr Tucker were done by Phillip, by myself or by Phillip and me in combination. The vast majority of these were produced from scratch but, on occasions, Phillip or I based a design for Mr Tucker on work Phillip or I had previously supplied to clients elsewhere. Once completed, the designs were shown to Mr Tucker for comment and, on rare occasions, some modifications were requested by him. On these occasions, I made the necessary alterations to the drawings."(pp76-77)
Mr Tucker denied this, reasserting his earlier claim that the work undertaken for him by Mr Bentley "was commenced by me producing a sketch or drawing of the works ... ".
In late 1992, Tucker Homes purchased Lots 31, 32 and 37 Hallam Street Norris Park, Albury. As to these allotments, Mr Tucker said in his affidavit of 27 October 1994 that he "retained the services of Phillip Delarue & Associates to provide their drafting services for the construction of houses on these lots". It was Mr Tucker's evidence that Annexure "C" to that affidavit is a copy of Mr Delarue's floor plan for the house that he intended to build on Lot 32 Hallam Street. The history of the development of the plans for Lot 32 was confusing. Mr Tucker claimed that Annexure "O" to his affidavit of 13 February 1995 was a copy of his original sketch for the proposed house as drawn by Mr Delarue. The significant feature of the proposal was that it contemplated the kitchen being sited at the rear of the house. Mr Tucker had said in par 8 of his earlier affidavit of 27 October 1994:-
"When we finished that session I left the sketch made by me and the notes made during our discussion with Phillip Delarue. Some days later I went back to Phillip Delarue's office and he then presented to me a floor plan for Lot 32 Hallam Street. I saw that the floor plan he had drawn was the same design as I had drawn on the sketch to which I have referred. I then told him "I am not happy with the position of the kitchen, I would prefer to move the kitchen to this position here next to the laundry." I showed him this by sketching it in pencil and we had a further conversation about that change. I then instructed him to draw the altered floor plan."
Exhibit A3, which was tendered in evidence through Mr Tucker was identified by him as his "original sketch" (p52) for Lot 32 Hallam Street. I take that to mean the original of his second sketch because it closely resembles Annexure "O", save that in Exhibit A3 the kitchen has been positioned on the western side of the house next to the laundry. It is obvious to an uninformed observer that Exhibit A3 is a rough or amateurish progenitor of the professional plan that is Annexure "C". Mr Tucker said that he had used his drafting equipment to draw sketches for the house that he wanted to build on Lot 32.
In par 29 of his affidavit Mr Bentley addressed the subject of designs and plans for Lot 32 Hallam Street. He denied that Mr Tucker handed to Mr Delarue or to him or showed either of them any "preliminary or other design sketches". It was his evidence that Mr Tucker orally instructed Mr Delarue to "create a design for Lot 32" and that Mr Delarue said to him "Barry wants a design for Lot 32 Hallam Street. Will you work one up. I suggest you use one of the Canberra designs as a basis". Mr Bentley annexed to his affidavit a bundle of drawings (Annexure "H") that had earlier been prepared for a client in Canberra and which he claimed, as I understand his evidence, he used in the preparation of an original design for Lot 32. An examination of the plans for Lot 32 and the plans for the Canberra house show some similarities. Both could be classed as four-bedroomed houses (although the fourth room in the plans for Lot 32 was intended as a study) and both had a double garage in the front. The general layout of the sleeping and living areas was also similar but not identical. But the most interesting difference was that the plans for the Canberra house had the kitchen at the rear even though the laundry was on the side in the same general area where it appears on the plans for Lot 32. This might suggest some support for Mr Bentley's proposition but, on the other hand, it might have been a coincidence. I do not feel able to make any finding on this issue.
Mr Tucker was cross-examined at length about his claim that he had been responsible for the original design and sketch for Lot 32 Hallam Street. The cross-examination centred upon Mr Tucker's use of the word "sketch" in some of his affidavits and the inference that he had been the author of every such sketch. There were references in the questions to sketches that had been variously prepared by Mr Tucker and by Mr Delarue but I was not always confident that the answers bore a direct relationship to the questions. In my opinion, Mr Tucker contributed to the confusion by giving the appearance that he was not listening to the questions; nor was he impressive when he answered a question about reading one of his affidavits before signing it. He was asked had he read it carefully. He replied:-
"I read it, I would not say so carefully, but I did read it. I didn't examine it to this extent."(p80)
In his affidavit that he swore on 7 June 1996, only a few weeks before trial, Mr Tucker deposed that:-
"... that sketches drawn during the development of the design for Lot 32 Hallam Street referred to therein aredocuments numbered 22 to 28 inclusive in the Applicants supplementary list of documents."(p71)
His cross-examination eventually established that this bold assertion was wrong (p89). He was forced to concede that some of the so-called "sketches" were the work of Mr Delarue and others were the work of Mr Bentley. Nevertheless Mr Tucker remained adamant that work with respect to Lot 32 had commenced with an original design, Ex A3, that he had drafted. That cannot be literally correct for, as I have already found, Ex A3 was his second sketch. On the other hand, if I accept
Mr Tucker, it was the sketch upon which the final plans for Lot 32 were based. He identified Annexure "O" to his affidavit of 13 February 1995 as Mr Delarue's original work, adding that he found it among the papers that Mr Phillip Delarue gave him the day before he took his life (p94). He pointed to Mr Delarue's handwriting on the plan "Evolution Lot 32" as an indicator that it represented a stage in the design of the plans following upon his original work. I am satisfied that Mr Tucker had a degree of involvement in the preparation of a design for Lot 32. But I think that both he and Mr Bentley exaggerated their respective contributions in their attempts to discredit the other.
Mr Tucker's Evidence
Mr Tucker was forced to acknowledge the existence of another error in his affidavit of 7 June 1996. It was a minor error about the commencement date for work on Lot 37. But his answer was disturbing; he said, "Yeah, I would have to say that I didn't pay enough attention to (the) wording". (p152). I found this attitude to the presentation of his case quite alarming and I must say that it fitted into a pattern which I discerned about Mr Tucker and his manner of giving evidence. He was too ready to make bold and general assertions which did not stand up to scrutiny. I reject his counsel's submission that he should be classified as a careful witness.
Another example of an error that was made by Mr Tucker that points to laxity in his preparation for trial related to his evidence about a meeting with Mr Bentley when he (Mr Tucker) asked Mr Bentley to take over some work from Mr Delarue. In par 7 of his affidavit of 27 October 1994 Mr Tucker said:-
"In or about October 1992 I was proposing to build a house on a property situated at Southern View Drive, Albury for clients a Mr & Mrs Frank Lang. I had retained the services of Phillip Delarue & Associates for this job. Because I was experiencing delays in getting the plans from Phillip Delarue I contacted the First Respondent in about mid-February, 1993 and I said using words to the effect "Phillip is not able to keep up with my work on these plans. Would you take this over and complete these plans so that I can submit them to the Council without much further delay." The First Respondent agreed to this and I then handed to him the incomplete plans which I had collected from Phillip Delarue."(p30)
In par 40 of his affidavit Mr Bentley contradicted what Mr Tucker had said. He identified an occasion on Thursday 18 March 1993 when Mr Tucker visited him with a client, a Mr Marks. He acknowledged that Mr Tucker handed him a presentation drawing in respect of Lot 619 Southern View Drive. He said that he recognised it as one that he had prepared when he was employed by Mr Delarue. He denied however, that Mr Tucker had given him any incomplete plans. Mr Tucker subsequently filed another affidavit, sworn on 7 June 1996, in which he acknowledged that his version of events as set out in his earlier affidavit was incorrect. The house that he had proposed to build in October 1992 was at Lot 54 Amalfi Drive for a Mr Frank Amalfi and he agreed with Mr Bentley "that no plans were prepared for Lot 619 Southernview Drive during the period which (Mr Bentley) was employed by Phillip Delarue & Associates".
Mr Tucker deposed in par 9 of his affidavit of 27 October 1994 that in early November 1992 he started work on a sketch for a house for Lot 37 Hallam Street. He said that he used his ideas that he had previously developed for Lot 32:-
"These ideas included rooms which were not square or rectangle, the hallway was to have the feature of not being in a straight line down the centre of the house but having corners giving the impression of being angled curves, I wanted to achieve the dining room and living areas having angled walls similar to the angles for the hallway with the same feature for the kitchen which would form part of an extension to the proposed family room. It was with those ideas that I then commenced to make sketches for the proposed house. I placed dimensions on the sketch and I also drew a sketch of the house on the lot so as to place it in the position which I believed then was best having regard to the size and shape of the proposed house and the block of land."(p31-32)
This narrative is consistent, in general terms, with both the sketch and the Hallam Street Plans.
Mr Tucker approved a sketch that Mr Bentley had prepared as it "was drawn up to the design and dimensions which I had on my original sketch". He said that he instructed Mr Bentley to increase the size of the bedrooms and, subject to that, to prepare a floor plan and commence work on working drawings. According to Mr Tucker he collected the Hallam Street Plans a few days later.
Mr Bentley denied Mr Tucker's version of the events leading up to the preparation of the Hallam Street Plans. He claimed that instructions for the preparation of plans for this allotment commenced with his conversation with Mr Tucker on the site of Lot 37 Hallam Street on the morning of Wednesday 28 April 1993 where they met at the request of Mr Tucker. According to Mr Bentley, Mr Tucker said at that site meeting that an earlier plan for Lot 37 that had been prepared by Mr Delarue was unacceptable as the proposed house was too large. Mr Tucker denied that he had complained about size; he said (p52) that he was not happy with the first design for Lot 37 as it had been prepared at the request of a potential purchaser, but that it did not contain features that Mr Tucker was then "putting into (his) homes".
After Mr Tucker had indicated some changes that he wanted, Mr Bentley said that he asked Mr Tucker "what style did you have in mind?" and that Mr Tucker replied "This is what I want". With that Mr Tucker, according to the evidence of Mr Bentley, took Mr Bentley's pen "and sketched on the same sheet as I had been taking notes, a roof shape he had in mind for the house". Mr Tucker denied that there was any such meeting. Annexure "P" to Mr Bentley's affidavit is said to be his original notes of that meeting incorporating Mr Tucker's sketch.
According to Mr Bentley, Mr Tucker first saw the design that Mr Bentley had prepared on 29 April 1993. That design was Annexure "R" to Mr Bentley's affidavit and Annexure "S" was another copy of the same pencil design sketch with some additional suggestions noted by Mr Bentley in red ink. According to Mr Bentley, Mr Tucker approved the amended design and on 4 May 1993 Mr Tucker completed his presentation drawings. Mr Bentley's working drawings for Lot 37 also identify him as the designer as well as the draftsman.
Annexure "C" to Mr Bentley's affidavit is an invoice from Phillip Delarue & Associates for professional services, including services relating to Lot 31 Hallam Street. Mr Bentley's evidence was that, as on other occasions, Mr Tucker had given oral instructions only for this work. Mr Bentley claimed that a design was prepared and shown to Mr Tucker who requested some changes to it. In par 20 of his affidavit Mr Bentley says:-
"Further sketches and working drawings based on a revised design for Lot 31 were drawn by Phillip and me in August 1992. Mr Tucker was then billed for a re-design fee as well as for the working drawings. Annexed to this affidavit and marked "C" is a copy of the invoice for work performed by PDA (Phillip Delarue & Associates) in August 1992 which describes the work performed as "REDESIGN TO SUIT AMENDMENTS REQUESTED AND SUBSEQUENTLY PREPARE FINAL WORKING DRAWINGS ... "."(p78)
The curiosity about this statement is that Mr Bentley led no evidence about an invoice for the first design in respect of which Mr Tucker allegedly requested changes. Rather than assisting Mr Bentley's case it seems to me that the terminology of this invoice is more consistent with Mr Tucker having produced an initial sketch and Phillip Delarue & Associates having done work on a redesign. On the other hand, Annexure "H" to Mr Tucker's affidavit of 27 October 1994 is Mr Bentley's invoice for his work in respect of Lot 37 Hallam Street. Its material parts are two fold:-
"PREPARE 18 SQ HOME DESIGN FOR LOT 37 HALLAM STREET NORRIS PARK
PREPARE WORKING DRAWINGS FOR BRICK VENEER RESIDENCE AT LOT 37 HALLAM STREET ALBURY."(P47)
The language of this invoice points to Mr Bentley having prepared the original design. Then there is the invoice in respect of Lot 32. Mr Tucker claimed that he gave Mr Delarue an original sketch for Lot 32 yet the language of the invoice for that work (Annexure "K" to Mr Bentley's affidavit) suggests the contrary:-
"Re:Lot 32 Hallam. For: Consultations, Design & Preparation of 2nd alternative designs to suit site all as directed ... ."
Mr Tucker said that he paid no attention to the language of this invoice (p130). However, as he acknowledged, another invoice from Mr Bentley, Annexure "O" to Mr Bentley's affidavit, dealt only with the preparation of working drawings (with no reference to design) for Lot 619 Southernview Drive because, as Mr Tucker agreed (p130) he had given "working plans" to Mr Bentley and so obviated any need for design work.
Mr Cobden, counsel for Mr Bentley, challenged Mr Tucker's evidence, putting to him that there were "occasions on which you went to Mr Delarue without a sketch or drawing or outline on paper of the house you proposed to build on a vacant lot and merely gave him instructions of the kind of house you wanted to have built on the lot." (p99). Mr Tucker's reply was an enigmatic one:-
"No, I don't believe that would be correct."
I did not find Mr Tucker's answers convincing. He seemed to regard the subject as one that was difficult. At the same page he had earlier been asked by the Court whether he had ever approached a draftsperson "without a piece of paper, without any preconceived ideas committed to paper in any form ..." I would have thought that the question was a relatively simple one calling for a simple answer. Instead Mr Tucker replied:-
"No, in that form I can't say there was any occasion that I didn't have any pre-formed opinion of what I wanted to do before I ever went, no. That would be, no, in that context."(p99)
Asked to explain himself, his answer became more confusing:-
"Pre-formed opinion in your mind or pre-preformed opinion reduced to writing?...Now, that gets difficult. I can't recall - that's impossible"(p99)
The various incidents that have been summarised above are the indicators that caused me to have reservations about Mr Tucker and his evidence. His unwillingness to give direct and simple answers to simple questions was disturbing. I find that I cannot accept his basic assertion that he always prepared an original sketch for the design of a house before giving his instructions to a draftsperson such as Mr Delarue. The evidence does not support the assertion that appears in par 3(E)(iii) of the Statement of Claim that it was "the invariable practice" of Mr Tucker "to present to (Mr Delarue's) firm sketches or plans for houses which he instructed that firm to prepare Presentation Plans and Working Drawings".
There was another subject in Mr Tucker's evidence that caused doubts about his case. Subsequent to Mr Bentley's preparation of the Hallam Street Plans, he prepared a plan for Mr Gordon Marks, a mutual client of Mr Tucker and Mr Bentley. As the intended builder, Mr Tucker was given a copy of the plans that Mr Bentley had prepared for Mr Marks. They bore similarities to the plans earlier prepared for Lot 37 Hallam Street. No mention of this subject was made by Mr Tucker in any of his four affidavits but when questioned about it in cross-examination he claimed that he had spoken to Mr Bentley about the matter. He then became evasive and it was necessary for me to intercede and remind him of the need to answer the question. Ultimately, he conceded (p179) as was obvious, that he had not made mention of any such conversation in any of his affidavits. Once again the subject was not of great importance; it could have been explained away as a matter that Mr Tucker did not regard as significant. But instead, he did himself a disservice by the manner in which he sought to avoid the issue.
In addition to his evasiveness, Mr Tucker was argumentative to the point that at one stage he unfairly accused counsel for the respondent of misleading him and distorting the facts. (p193) Unwarranted outbursts like that are not impressive.
The case for Mr Bentley was that Annexure "L" was fraudulently prepared and used by Mr Tucker only for the purposes of this litigation. It was agreed that Annexure "R" to Mr Bentley's affidavit was the plan that he first prepared for Lot 37 Hallam Street; Mr Bentley called it a "measured design sketch". Mr Tucker claimed that it was prepared and based on Mr Tucker's original sketch of which Annexure "L" was a photostat copy. In advancing the proposition that Annexure "L" was a fraud, counsel for Mr Bentley was able to get Mr Tucker to agree that Annexure "R" made provision for a planter box near the main entrance but there was no planter box in Annexure "L". Mr Tucker also conceded that when he finally built the house on Lot 37, he did not include a planter box. The argument advanced by Mr Bentley was that if, in fact, Annexure "R" was based on Annexure "L" then one would expect to find provision for a planter box in Annexure "L". Furthermore, if Mr Tucker had decided, in building the house,
not to include a planter box and thereafter drew Annexure "L" for the purposes of these proceedings, then the chances are that he would not have included a planter box because he had not installed one.
The same type of argument was advanced on behalf of Mr Bentley with respect to a barbecue, a wall to the street and a Hills Hoist clothes line. None of these were shown on Annexure "L" but all appeared on Mr Bentley's plan, Annexure "R", and all were included in the house in its final form. If, as says Mr Tucker, Annexure "R" was based on Annexure "L" why were these items missing from Annexure "L"? On the other hand, an argument that might favour Mr Tucker was that some of the bedrooms in Annexure "L" were shown as measuring 3000mm but in Mr Bentley's plan the same rooms were marked at 2700mm. In the house as built, they reverted to 3000mm. In my opinion, a finding of fraud against Mr Tucker is not the only inference that can be drawn from these inconsistencies. Another inference is that Mr Tucker was not a reliable witness in matters of detail. Elsewhere in these reasons, there are examples of him making sweeping statements that have not stood up to cross-examination. In my assessment he was a witness who lacked the ability to be specific: nor could he give detailed evidence; he was prone to generalisations and, when caught out, foolishly tried to hold his ground with vague and evasive answers. Such a witness might well make a general assertion that Annexure "R" was based on Annexure "L" not caring or not considering it important that there were minor differences.
Hence, notwithstanding these deficiencies in his character and his evidence, I am not prepared to make a finding of fraud against Mr Tucker. I am not prepared to find that he prepared or used Annexure "L" deliberately for the purpose of instituting these proceedings against Mr Bentley. I am fortified in reaching this conclusion because of my subsequent finding that Mr Bentley was a very unsatisfactory witness and one upon whom I could place little or no reliance.
Mr Bentley's Evidence
My dissatisfaction with Mr Tucker as a witness was exceeded only by my dissatisfaction with Mr Bentley.
One area of Mr Bentley's evidence that had initially concerned me was his evidence regarding Annexure "L". Although this area of concern has evaporated, it generated some strong discussion during the course of final submissions and I feel that I should therefore summarise the issue so that it may be seen that I have not taken it into account when making my assessment of Mr Bentley. Mr Bentley said during the course of his cross-examination that he first saw Annexure "L" as recently as the week in which the trial began and that he had never seen the original copy.(p221) He agreed that he was "stunned" when he saw it. This was a surprising assertion as Annexure "L" was an annexure to Mr Tucker's affidavit of 21 December 1994. That affidavit has been filed in Court two days later on 23 December and presumably was served on Mr Bentley's solicitors (making due allowance for the Christmas break) within a month or so. Significantly, Mr Bentley had made no reference to Annexure "L" in his only affidavit of 10 March 1994 even though he was later to say orally in evidence that it was a fraud and that Mr Tucker had prepared it on a date subsequent to the institution of these proceedings.
However, at a later stage in the proceedings, Mr Bentley conceded that he had been supplied with a copy of Mr Tucker's affidavit of 21 December and of Annexure "L". My first impression was that Mr Bentley had lied when he said that he saw Annexure "L" for the first time in the week of the trial. But his counsel made an impassioned plea that I had misunderstood the situation. Although there was no evidence forthcoming from Mr Bentley on the subject, it was put by counsel in his final submissions that Mr Bentley had that week seen the original Annexure (as distinct from a photocopy of the original Annexure) for the first time and had been "stunned" by red coloured markings on the sketch: those coloured markings had merely shown as black lines in the copy of the Annexure that had been sent to Mr Bentley. I would not have readily accepted such an explanation had it not been for the reaction of Mr Tucker's counsel. In response to an enquiry whether he wish to address on this subject he replied "No, I have nothing to say about that" (p375). I feel that I must allow for the fact that counsel's reply indicated that he accepted the explanation advanced on Mr Bentley's behalf. In those circumstances, and for that reason, I will also accept it and proceed upon the premise that there was a misunderstanding. In view of the adverse findings that I have made against Mr Bentley, I have considered it necessary to emphasize that this episode played no part in my deliberations.
However, disregarding the misunderstanding concerning Annexure "L", other parts of Mr Bentley's evidence proved him to be an unreliable and evasive witness. He was reluctant to acknowledge minor matters that were put to him by counsel for the applicant for fear that he might somehow impede his case.
I set out hereunder references to his evidence that I regard as objectionable for one reason or another.
First, he refused to acknowledge that Mr Tucker had been a valued client of Mr Delarue notwithstanding that, he, during his seven years of employment had worked on at least 20 to 30 jobs, for Mr Tucker. His own evidence concerning the extent to which he and Mr Delarue did work for Mr Tucker would have justified an affirmative answer to that question. Secondly, he refused, initially, to acknowledge what I thought would have been obvious. Mr Delarue was a senior person in his profession: Mr Bentley was a young man in his mid-twenties. Yet Mr Bentley would not deign to acknowledge Mr Delarue as one from whom he could learn. His evidence was as follows:-
"Of course, I take it that one of the benefits of your job with Mr Delarue was to learn from him?...We learnt from each other
No, to learn from - you to learn from him?...I did learn things from him, yes.
You learnt a lot from him did you not?...I learnt things from him. I can't say it was a lot.
You learned about design from him?...No, I already knew about design.
Did you?...Yes.
Did you design any houses before you were employed by Mr Delarue?...Yes."(p224)
Asked to give details of the houses that he had designed prior to joining Mr Delarue, Mr Bentley said that he had designed "maybe 20" when he was working in Melbourne. But he could not name or describe one of them. I do not believe this evidence. It was the boast of an arrogant young man who, quite obviously, had little regard for Mr Delarue. That finding comes from the manner in which he reacted to a question about Mr Delarue's health:-
"I see.Do you recall Mr Delarue was a sick man for some time?...He had an alcoholic problem.
He was a sick man?...If that's what you want to call it.
Well, what do you call it?...I call it alcoholism."(p223)
One cannot criticise Mr Bentley's answer for inaccuracy - only for callousness and unsubstantiated disdain for his employer. A third area where I found Mr Bentley to be an unconvincing witness concerned an innocuous question dealing with his attitude towards Mr Tucker. He rejected the cross-examiner's proposition that he resented Mr Tucker. He would not agree that he harboured any hard feelings, prejudice or bitterness toward Mr Tucker (pp230-231). I cannot accept this evidence. Mr Tucker was, on Mr Bentley's evidence, not only a liar, he was a man who had falsely accused Mr Bentley of lying; he was also a man who was now suing Mr Bentley upon the basis of that false accusation. I do not believe this passage of Mr Bentley's evidence.
A fourth area concerned the way in which Mr Bentley reacted to Mr Tucker's advertisements for the sale of the house on Lot 37 Hallam Street. Under cross-examination (pp244-245) Mr Bentley agreed that it was his case that Mr Tucker had the right to use the Hallam Street Plans "once and only once". He also agreed with the proposition that he had copyright in the Hallam Street plans and he considered ownership of such copyright to be an important part of his business. Despite all this, he claimed that it was not a matter of concern to him when he saw Mr Tucker's advertisements in the "Border Mail" for the sale of Lot 37 Hallam Street and saw that they included his floor plan. I have great difficulty in understanding his evidence on this subject. The relevant passage appears at p 244 of the transcript:-
"Well, I thought -stop me if I am wrong Mr Bentley - but my client was only entitled to have one use of the plan?...That is correct.
Well, did not those advertisements tend to suggest to you that my client was advertising that he had the right to use those plans as many times as he saw fit?...No, that's not correct.
Well, how do you understand it?...I understood it as being he was displaying his work and he put a copy of the floor plan on the paper to create interest for people to come and have a look at his work.
For what purpose?...I presume to get other work.
To build the same house?...Not necessarily, to see his quality of work."(p244)
In my opinion, the inclusion of the floor plan had a two-fold purpose: first, it had, as its primary objective, a graphic portrayal of the house that was the subject of the advertisements. In that sense, it was a selling aid. But it had a secondary purpose, in that it let the reader know, by inference, that the builder would be available to build a second or subsequent house in accordance with this plan. If I am wrong and this was not a second purpose, it was at least a consequence of the inclusion of the floor plan in the advertisements. That much was conceded by Mr Bentley (p246). I would have expected Mr Bentley to have complained to Mr Tucker about the use of the floor plan in the advertisements if, as Mr Bentley claims, his arrangement with Mr Tucker was that the Hallam Street Plans could only be used once by Mr Tucker.
Associate:
Dated:
Counsel for the Applicant : Mr JS van Aalst
Solicitor for the Applicant : Fleming Muntz Summons
Counsel for the Respondent : Mr R Cobden
Solicitor for the First Respondent : Blake Dawson Waldron
No appearances for Second and
Third Respondents
Date of Hearing : 1-5 July 1996
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